Lost in transmission : law's 'insubordinate openness" and the use of HIV-related criminal offences in the governance of HIV in New South Wales

Abstract

Recently, the HIV sector in New South Wales has developed a strong interest in HIV-related criminal offences which have been vigorously contested in policy and public health literature. This research attempts to move beyond specific issues of public policy or doctrinal development and situates the imposition of HIV-related criminal offences as a part of a broader question of the nature of law itself, its place in contemporary approaches to regulation and understandings of power and importantly its relationship with other techniques of governance such as the disciplines of public health and health promotion in particular. The central argument of this research is that law is mischaracterised in current debates about the governance of HIV. In characterising the nature of law itself and the interplay between legal-juridical power on the one hand and bio- and disciplinary power on the other, an anaemic characterisation of the law has led to a kind of knee-jerk antinomianism which risks embedding or simply re-creating the problems which the entire law reform and public health project sets out to solve. I undertake the review of HIV-related criminal law through the work of Foucault. I use Foucault in an exegetical mode rather than the more traditional methodological application of Foucault s various methods. By reading Foucault s substantive statements on law we see that rather than Foucault "refus[ing] to accord any major role to legal regulation in creating the distinctive features of modernity, a revised characterisation of the governance of HIV requires that we cease portraying HIV-related law and public health approaches as mutually exclusive. We must reorient our understanding towards one where law and public health are understood to exist in a relationship of mutual co-constitution through processes of strategic withdrawal and conflict. This position provides a new contribution to a literature which has generally underplayed the dynamic interrelation of HIV-related law and public health, which has tended to call for decriminalisation and other discrete modes of law reform, reflective of a view which sees law and its disciplinary other as separately constituted domains and a law which prohibits rather than adapts to resistance and transgression.